In a report published in August 2020, the Australian Commonwealth Ombudsman warned the federal government of “increasing concerns about the use of force in detention facilities”, with force too often being used by security personnel to resolve conflict or manage detainees’ non-compliant behaviour. In response, human rights organisations have called for increased oversight and accountability in detention centres, suggesting Australia is breaching its international obligations towards refugees and asylum seekers.

This is not the first time reports of excessive force in Australian immigration detention centres have been received, with the Ombudsman’s most recent report echoing its predecessors’ concerns that conditions of detention amounted to breaches of human rights. The report comes at the same time as the federal government is attempting to pass a bill to ban mobile phones in detention, contributing further to the lack of oversight and accountability of private security contractors in Australian immigration detention.  

THE REPORT

The Ombudsman’s office is responsible for conducting six-monthly inspections of immigration detention facilities under the control of the Commonwealth, in line with the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). The OPCAT was ratified by Australia in 2017, and stipulates for the creation of National Preventive Mechanisms designed to monitor the situation of individuals that are deprived of their liberty. As part of its functions as National Preventive Mechanism Coordinator, the Commonwealth Ombudsman undertakes regular inspections of places of detention to ensure that conditions are in line with Australia’s international law obligations. 

In his report the Ombudsman repeatedly expressed his serious concern over the number of incidents reported where alleged excessive force was being used, including by security staff.  Between 1 January 2015 and 31 March 2020, the Department of Home Affairs recorded 4,115 assaults in Australian immigration detention centres, however only 184 of these assaults were reported to the Police. Of these 184 assaults, 32 involved non-detainee perpetrators including staff, visitors or other stakeholders. 

The Ombudsman made specific reference to an unresolved incident in 2018 whereby an employee of the privately-contracted security company Serco excessively restrained a detainee, causing an injury. The Ombudsman condemned the handling of the investigation by both the security contractor and the Department of Home Affairs, finding that the force used was unlawful. In response, the Ombudsman has recommended that force-related complaint investigations be completed within six months and complainants be informed of investigation results promptly. Further, he recommended that staff be reminded of procedure and the consequences of breaching protocol. It is important to note that the recommendations of the Ombudsman are merely advisory, and the Minister of Home Affairs is not bound by such recommendations. 

A HISTORY OF EXCESSIVE FORCE IN IMMIGRATION DETENTION 

Under Articles 7 and 10 of the International Covenant on Civil and Political Rights (ICCPR), individuals held in immigration detention have the right to be treated with humanity and respect for their inherent dignity, and to be free from torture or cruel, inhuman, or degrading punishment. Australia ratified the ICCPR in 1980, however has never adopted its provisions into domestic law. Despite Australia’s obligations, detainees in Australian immigration detention centres have been the victims of repeated incidents of excessive force. 

In recent years, the Australian Human Rights Commission (AHRC) has reported on various incidents of excessive force by detention officers, including a seven year old boy being struck on the legs with a baton, and a detainee being grabbed by the throat and his head forced back against a wall. In 2019, the AHRC reported on the inappropriate use of restraints in immigration detention, focusing on an instance whereby one detainee was handcuffed for eight hours whilst in transit between detention centres. The Commission called for the victims of excessive force to be compensated, however the Department of Home Affairs has refused to recognise that they are responsible for any wrongdoing. The Commissioner Rosalind Croucher remarked that force should only be used where there is a legitimate reason and “the degree of force used should be proportionate to that legitimate reason.” 

Under the standard operating procedures of Serco, security contractors are lawfully permitted to use force in order to (1) defend themselves, (2) prevent a detainee from harming themselves or another person, and (3) to prevent an escape or to prevent damage to property. In its various submissions on the use of force in immigration detention by Serco employees, the AHRC highlights the fact that these contractors are not Police, and therefore they should be subject to stricter regulation and accountability in compliance with Australia’s human rights obligations owed to detainees. 

In a time when visits to detention centres (including by legal representatives) have been prohibited since March 2020 due to COVID-19 restrictions, the risk of unlawful force being used behind closed doors has heightened. Without independent, comprehensive oversight of the treatment of detainees, such breaches of human rights are likely to continue. 

Alysha is an Australian criminal defence lawyer, advocating on behalf of disadvantaged adults and children in accessing justice. She is undertaking a Masters of Public and International Law at the University of Melbourne, with interests in refugee law, criminal justice and children in international law.

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